U.S. v. Lowry

• Decision Date: 06 August 1992
• Docket Number: No. 89-3618,89-3618
• Citation: 971 F.2d 55
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald S. LOWRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 55

971 F.2d 55

UNITED STATES of America, Plaintiff-Appellee, v. Donald S. LOWRY, Defendant-Appellant.

No. 89-3618.

United States Court of Appeals Seventh Circuit.

Argued Feb. 27, 1992.

Decided Aug. 6, 1992.

K. Tate Chambers, Asst. U.S. Atty., argued, Peoria, Ill., for plaintiff-appellee.

Steven J. Plotkin, argued, Chicago, Ill., for defendant-appellant.

Before COFFEY and MANION, Circuit Judges, and SHABAZ, District Judge. ^*

COFFEY, Circuit Judge.

The facts in this case read like the plot outline of a prime time movie made to be shown during television's sweeps week. (Indeed, the district court ordered the bankrupt defendant to pay restitution "from the potential proceeds of any book/movie/TV or similar rights" he might obtain from telling all.) Of course, appellate judges seldom play a significant role in such productions, so we are free to concentrate on the task at hand, which is to determine whether the defendant's attorney was constitutionally ineffective, whether the government produced sufficient evidence of the defendant's intent to commit mail fraud, and whether the court applied the correct law in imposing sentence. We affirm the conviction and remand for resentencing only.

I. BACKGROUND

In the early 1960s Donald Lowry published a book about his travels through Mexico entitled Mexico: Bachelor's Paradise. The response to the book convinced Lowry that there were many men out there who lacked self-confidence and had trouble with relationships, and that he could help these men by establishing a mail-order lonely hearts club. He followed through on this idea and founded such a club in 1965. After running this club for a few years, Lowry incorporated his business under the name of Col International, "Col" being an acronym for "Church of Love" (hereinafter "COL").

It is the premise of the COL that lends spice to the script. Using mailing lists acquired from men's magazines and various lonely hearts clubs, Lowry mailed informational packets to thousands of men describing the COL and its purpose. These letters claimed that the COL was founded in Mexico in 1965 by a teenage girl, Maria Simona Mireles, who now went by the name "Mother Maria". According to the letters Mother Maria had been called to establish a new Garden of Eden, a valley paradise to be known as "Chonda-Za". In Chonda-Za, COL members would join with Mother Maria and an entourage of beautiful young women known as the "Angels of Love", living the rest of their lives in utter peace and fulfillment. Neither Rome nor the Garden of Eden was built in a day, however, and at present Chonda-Za was still a shimmering dream, though progress was being made. In the meantime, the mailings revealed, Mother Maria and the Angels were living on an old farm near the western Illinois town of Hillsdale, frolicking in a bucolic encampment known as the "Retreat". At the Retreat the Angels were purifying themselves for entry into Chonda-Za and perfecting a free and open pastoral lifestyle, uninhibited by the moral code and strictures that modern society places on male-female relationships. This would be the lifestyle enjoyed by all in Chonda-Za.

We wish to make it clear that neither Mother Maria, nor the Angels of Love, nor the Retreat actually existed. The COL and its customs were nothing but creations of Lowry's active and fertile imagination, but he neglected to make mention of this in any of his mailings. In fact, the COL operated out of a few rooms in a building in Moline, Illinois.

The lonely men targeted by these mailings were invited to join the COL, with a lifetime membership costing a mere thirty dollars. ¹ After joining, members enjoyed all sorts of benefits, receiving a monthly newsletter called The Templian, which included self-help articles and news of the goings-on at the Retreat, and regular promotional letters, which included order forms for self-help booklets, photos of the Angels, or letters from the Angels. The photos were allegedly shots of the Angels living at the Retreat. Actually, however, they were pictures of coeds or models ² in various stages of undress. The letters were allegedly personal notes from the Angels to individual COL members, and over the course of time many of these men came to be close pen pals with one or more Angels. But, since no Angels existed, these letters were actually written by Lowry or his employees. To maintain the illusion that the Angels actually existed, however, Lowry created a different background, personality, and writing style for each Angel (for example, some Angels wrote simple, All-American letters, others (like Mother Maria) used broken English, and others used improper and off-color language). He also used different stationery for different Angels and even closed each letter with a false signature from the "authoring" Angel.

These personal letters and photos caused members to develop a close emotional attachment to the COL and to specific Angels. One man testified to sending over 1,500 letters to his favorite Angels; others left everything in their will to the COL; some planned to retire at Chonda-Za, or to drop everything and move there upon its completion; several purchased the station of "Temple Master", entitling them to sit at Mother Maria's side and have dominion over the Angels in Chonda-Za; a number planned to marry Angel Vanessa, who had been promised to multiple members; and large numbers accepted the letters' invitation to send "love offerings" (read "cash, checks, or goods") to the Angels, which would be reciprocated by the "fulfillment letters" described above.

More than this, Lowry's letters convinced members to put their money where their mouths (and hearts) were. The Angels, you see, had needs, and Lowry sent letters notifying the members of these needs and asking for their financial assistance. For example, the Angels needed money for "Mother Maria's Garden Fund", which they used to grow fruits and vegetables to tide them through the long Illinois winters. The Angels also needed funds to repair Angel Audrey's car, because she was the only Angel allowed to travel into town to purchase supplies for the Retreat. Further, emergency funds were solicited from time to time, as when Angel Susan allegedly was in an auto accident and necessitated hospitalization. ³ Other needs included money to pay the taxes on the Retreat, a new motor for the water well at the Retreat, a surprise gift for Mother Maria, a new coat for Mother Maria, a vacation for the Angels, sewing machines, typewriters, and, last but not least, money to buy the property to build Chonda-Za.

The members responded generously, lest the dream of Chonda-Za be crushed by their parsimony. Between 1982 and 1985 Col International took in $4.5 million dollars. On top of that there were gifts galore--money, jewelry, stereos, food, clothing--so many that Lowry had no place to keep them and had to get rid of them by giving them to employees, holding a sidewalk sale, or selling at a store he opened called "Saver's Haven". Needless to say, the cash and the funds from the gifts went into Col International's coffers; the fictional Angels never demanded their due, and Lowry and his associates kept all the money.

The dream of Chonda-Za ended when Lowry learned that the COL was under investigation by federal authorities, but he broke the news gently. First, he informed the members that Mother Maria and the Angels were leaving the Retreat for a long vacation. A second mailing announced that they were not coming back, and Lowry shut down the COL. Nevertheless, Lowry, his wife, and his chief assistant, Pamala St. Charles, continued to contact COL members by forming successor organizations such as the International Order of Knights, which used the same tactic of targeting lonely men and soliciting funds.

On December 4, 1987, a twenty-count indictment issued, charging Lowry with seventeen counts of mail fraud (18 U.S.C. § 1341), one count of conspiracy to commit mail fraud (18 U.S.C. § 371), and two counts of using fraud proceeds to conduct a financial transaction (18 U.S.C. § 1956). After a nationally publicized trial in Peoria, Illinois a jury convicted Lowry on nineteen counts, and acquitted him on one count of mail fraud. Deciding that the crimes were not covered by the Sentencing Guidelines, the district court applied pre-Guidelines law, sentencing Lowry to a total of twenty-seven years in prison and ordering restitution to the victims of $94,450.00. The court structured its sentence as follows: consecutive five-year terms on mail fraud counts 1, 2, and 3; a consecutive five-year term for count 18, conspiracy to commit mail fraud; and consecutive three- and four-year terms for mail fraud counts 8 and 9. The court also imposed concurrent five-year terms on mail fraud counts 4, 5, 7, and 10, and suspended the sentences on the remaining counts.

II. ISSUES

Lowry raises a number of issues in this direct appeal, arguing: (1) that he did not knowingly and intelligently waive his right to conflict-free counsel, (2) that his attorney's conflict of interest deprived him of his right to counsel, (3) that, regardless of any waiver, the trial court should have disqualified his attorney because of the conflict of interest, (4) that the evidence was insufficient to prove that he acted with specific intent to defraud, and (5) that his conspiracy conviction was covered by the Sentencing Guidelines, and so we should remand for resentencing.

III. DISCUSSION

A. Waiver of the Right to Conflict-free Counsel

The Sixth Amendment affords criminal defendants the right to counsel and, absent a conflict of interest or similar ethical problem necessitating disqualification, the right to privately retained counsel of their own choosing. Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 1696-97, 100 L.Ed.2d 140 (1988); United States v. Defazio, 899 F.2d 626, 629 (7th Cir.1990). The Amendment also entitles defendants to representation by...